United States District Court, S.D. Florida, Miami Division
ORDER ON DEFENDANT'S WORK PRODUCT
JONATHAN GOODMAN, UNITED STATES MAGISTRATE JUDGE
Order addresses the discoverability of an engineering report
ordered and received by a cruise ship operator's in-house
counsel after a passenger injured himself on the ship's
Sky Pad, an on-board jumping attraction. The cruise ship
company has asserted work product protection over that report
but dismantled the attraction before Plaintiff or his expert
could inspect it. Plaintiff contends the report is not work
product in the first place because the primary purpose for
the report was not in anticipation of litigation. And he
further urges entitlement to the report, even if it is work
product, because he meets the “substantial need”
or “inability to obtain equivalent evidence”
exception. The cruise ship operator rejects those theories
and objects to producing the engineering report.
discovery dispute arises from injuries Plaintiff Casey
Holladay sustained while using the Sky Pad attraction aboard
Defendant Royal Caribbean Cruises, Ltd.'s Mariner of
the Seas ship. A participant using the Sky Pad is
positioned on a trampoline and then fitted with a harness
with bungee cords attached on either side, enabling the
participant to bounce up and down. Plaintiff was bouncing on
the Sky Pad when he became unattached from the harness system
after the bungee equipment failed, causing him to fall on the
hard deck surface next to the trampoline. The fall resulted
in physical injury to the Plaintiff, including pelvic
filing this lawsuit against Royal Caribbean, Plaintiff
propounded discovery and requested the production of
documents relating to Plaintiff's fall from the Sky Pad.
Royal Caribbean provided Plaintiff with a portion of the
requested documents and a privilege log, asserting the work
product exception to discovery over certain documents. It
also asserted the attorney-client privilege to some emails.
Undersigned held a hearing on the parties' discovery
dispute. [ECF Nos. 1');">18; 1');">19]. At the Discovery Hearing,
Plaintiff sought the production of documents with a work
product “privilege”[1');">1" name=
"FN1');">1" id="FN1');">1">1');">1] designation on Royal
Caribbean's Second Amended Privilege Log.
Undersigned ordered Royal Caribbean to submit a copy of the
contested documents under seal for an in-camera
inspection. [ECF No. 20]. Currently at issue is whether the
SEA, Ltd. (“SEA”) Sky Pad Evaluation Report (the
“SEA Report”) constitutes protected work product
and should remain protected from production to Plaintiff. The
SEA Report is the subject of Plaintiff's motion to
compel. [ECF Nos. 32; 41');">1].
Undersigned analyzed the SEA Report to determine whether it
was properly designated as a protected work product document.
[ECF Nos. 21');">1; 22; 24; 25].
with the Report, Royal Caribbean submitted the affidavit of
Paul Hehir, a Royal Caribbean attorney who stated that Royal
Caribbean “retained Bryan Emond from SEA, Ltd. . . . to
inspect the Sky Pad and to provide Royal Caribbean with a
report of his findings and opinions . . . as his findings and
opinions would help defend the company from the litigation
that Royal Caribbean anticipated would ensue after
Plaintiff's incident.” Hehir Affidavit at
¶¶ 8, 1');">10-1');">11');">1.
then submitted the Affidavit of Donald McPherson,
Plaintiff's liability expert, who explained that it is
impossible for him to adequately inspect the Sky Pad on the
Mariner of the Seas because the attraction has been
disassembled. [ECF No. 28-1');">1, p. 3');">p. 3]. He stated that while he
has been able to “inspect certain parts and equipment
of the Sky Pad that had been removed from the ship and was
made available at the offices of Defense Counsel, ”
some portions of the Sky Pad equipment “were not made
available at the offices of the defense counsel when I
conducted my inspection.” Id. at pp. 3');">p. 3, 5-6.
McPherson attested that it is “not possible to obtain
the same information” contained in the SEA Report
because “Defendant had total access to all of the parts
and equipment and information Defendant obtained promptly
after the incident in question, whereas the Plaintiff did not
have the benefit of the same information.” Id.
at p. 6.
response, Royal Caribbean submitted the affidavit of its
engineering expert, Brian Mills, who explained that the
“[r]esponses to Plaintiff's Interrogatories,
engineering schematics of the Sky Pad, Eurobungy manuals, Sky
Pad maintenance documents, Sky Pad training documents, photos
of the Sky Pad and its parts after the incident, and CCTV
footage of the incident” are sufficient for Plaintiff
to be able to replicate the same results from the SEA Report.
[ECF No. 37-1');">1, p. 2]. Mills attested that “[t]he
documents and materials made available to Plaintiff provide
enough information to make an evaluation of the Sky Pad as it
existed on the date of the incident and to determine how the
incident occurred.” Id.
Undersigned ordered the parties to each submit a brief
memorandum of law discussing whether Plaintiff has shown a
substantial need for the SEA Report under Federal Rule of
Civil Procedure 26(b)(3)(A)(ii). [ECF No. 38]. The parties
filed their respective memoranda. [ECF Nos. 42; 44');">44].
careful consideration of the parties' submissions, the
relevant authority, and the SEA Report, and for the reasons
discussed in greater detail below, the Undersigned
grants Plaintiff's request and directs
Royal Caribbean to produce a copy of the SEA Report to
Plaintiff's counsel within five (5) business days.
Applicable Legal Principles
attorney work-product privilege traces its roots to the
recognition by the Supreme Court, in Hickman v.
Taylor,329 U.S. 495, 51');">10-1');">11');">1, 67 S.Ct. 385, 393, 91');">1
L.Ed. 451');">1 (1');">1947), that ‘it is essential that a lawyer
work with a certain degree of privacy, free from unnecessary
intrusion by opposing parties and their counsel.'”
Cox v. Admn'r U.S. Steel &Carnegie,1');">17 F.3d 1');">1386');">1');">17 F.3d 1');">1386, 1');">1421');">1 (1');">11');">1th Cir. 1');">1994),
opinion modified on reh'g on other grounds, 30
F.3d 1');">1347 (1');">11');">1th Cir. 1');">1994); see also United Kingdom v.
United States,1');">131');">12');">238 F.3d 1');">131');">12, 1');">1321');">1 (1');">11');">1th Cir. 2001');">1)
(“The work-product doctrine reflects the strong
‘public policy underlying the orderly ...